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PageUp
Web Services
Virtual
Server Agreement
(Revised 6/17/2003)
This Agreement (“Agreement”) is between you
the (“Client”) and PageUp Web
Services, LLC, an Ohio limited liability company, (“PageUp”) as of the
date you order a virtual server plan (“Client’s Plan”) from PageUp.
PageUp is in the business of offering, among other
things, website hosting services pursuant to virtual server plans. The website
hosting services that PageUp offers are made available through reseller’s
agreements with one or more third party hosting service providers (“Service
Providers”). Client, by entering
this Agreement for a virtual server plan (“Client’s Plan”) from PageUp,
acknowledges and agrees to this business arrangement. Client further acknowledges that it is the responsibility of PageUp
to honor the terms of its reseller’s agreements with its Service Providers and
that this will, from time to time, result in required changes to this
Agreement.
PageUp may amend this Agreement at any time by
posting the amended Agreement on its web site and notifying Client, at Client’s
current e-mail address of record. It is
the responsibility of the Client to keep its account information current and
Client assumes full responsibility for any and all email notifications that,
for any reason, are undelivered. The
effective date of any amendment will be
the date on which PageUp sends email
notification . Client agrees that it
has read and understands this Agreement and acknowledges a duty to periodically
check these terms and conditions.
Without limiting the generality or effect of the foregoing, PageUp may
also add, delete or modify some or all of its Services at any time and in its
sole discretion.
By accepting this Agreement, Client (i) represents
and warrants that he or she is at least 18 years of age and is the authorized
representative of the organization or entity that he or she purports to
represent, and (ii) agrees to provide true, accurate, current and complete
information about Client as prompted in the account registration process.
1.
Services
1.1
Virtual Server. Pursuant to the terms of this
Agreement and the Client’s Plan, PageUp agrees to provide Client with: (i) space on a server (“Virtual Server”)
to host a site on the Internet (“Web Site”), (ii) access to an E-mail
Control Panel and other software (“Software”) required to access the
features provided in Client’s Plan, and (iii) various other services as more
specifically set forth in Client’s Plan (collectively, “Services”).
Client hereby agrees that PageUp is responsible only for providing the Services
set forth in Client’s Plan and this Agreement, and that PageUp is not
responsible for providing any other services or tasks as a part of this
Agreement.
1.2
Availability of Web Site. The Web
Site shall be generally accessible to third parties via the Internet
twenty-four hours a day, seven days a week, except for scheduled maintenance
and required repairs, and except for any loss or interruption of Services due
to causes beyond the control of PageUp or its Service Providers or which are not
reasonably foreseeable by PageUp or its Service Providers, including but not
limited to interruption or failure of telecommunication or digital transmission
links and Internet slow-downs or failures. PLEASE SEE SECTION 3 FOR 99.9% UPTIME
GUARANTEE.
2.
term
and renewal
This
Agreement will begin upon the date that Client orders Client’s Plan and shall
continue for the period of time set forth in Client’s Plan (“Initial Term”),
unless earlier terminated according to the provisions of Section 7 below. This Agreement will continue automatically
for additional terms equal to the Initial Term (each, a “Renewal Term”)
unless either party provides notice at least thirty (30) days prior to the end
of the Initial Term or Renewal Term, as applicable, that it has elected not to
renew the Agreement. For security reasons and the general protection of all
clients, PageUp requires that all notices not to renew the Agreement be
delivered by either: (i) submitting an electronic mail message, originating
from the domain name hosted on Client’s Web Site, to sales@pageup.us or (ii) faxing a signed cancellation request
to our offices at (440) 975-0125.
Either method must contain the account name, password, and reason for
cancellation.
3.
99.9%
Uptime Guarantee
3.1
Service Level. PageUp endeavors to have the
content of your Web Site available for http access by third parties 99.9% of
the time ("Web Site Availability").
3.2
Credits. In the event that there is no
Web Site Availability, PageUp will credit the following month's service fee as follows.
Such credit will be retroactive and will be as calculated below and as measured
24-hours a day in a calendar month, with the maximum credit not to exceed the
monthly service charge for the affected month.
3.2.1
95%
to 99.9% - 25% credit
3.2.2
90%
t0 94.9% - 50% credit
3.2.3
89.9%
or below – 100% credit
3.3
Requesting Credit. In order for you to receive a
credit on your account, you must request such credit within ten (10) business
days after you experienced no Web Site Availability. You must request credit by
sending an electronic mail message to support@pageup.us. For security, the body
of this message must contain your account number, the dates and times of the
unavailability of your Web site, and such other customer identification
requested by PageUp. Credits will usually be applied within sixty (60) days of
your credit request. Credit to your account will be your sole and exclusive
remedy in the event that there is no Web Site Availability
3.4
Restrictions. Credits will not be provided
to you in the event that you have no Web Site Availability resulting from (i)
scheduled maintenance as posted from time to time at www.pageup.us, (ii) your
behavior or the performance or failure of your equipment, facilities or
applications, or (iii) circumstances beyond PageUp's reasonable control,
including, without limitation, acts of any governmental body, war,
insurrection, sabotage, embargo, fire, flood, strike or other labor
disturbance, interruption of or delay in transportation, unavailability of
interruption or delay in telecommunications or third party services (including
DNS propagation), failure of third party software or hardware or inability to
obtain raw materials, supplies, or power used in or equipment needed for
provision of your Web Site.
4.
Fees
and payment
4.1
Fees. Client shall pay all fees according to the
prices and terms listed in this Agreement and Client’s Plan. The prices listed in Client’s Plan at the
date of this Agreement shall remain in effect during the Initial Term. PageUp may change the fees it charges Client for Plans upon sixty (60) days
prior notice to any Renewal Term.
4.2
Payments and Late Payment Charge. Payment
for all Set-Up Fees (as set forth in the Plan) shall be due immediately upon
Client’s registration of the Plan. Fees for Services shall be in the amount and
frequency set forth in the Plan selected by Client (“Payment Date”). This Agreement is for the entire Initial
Term or applicable Renewal Term and Client is hereby obligated to pay the fees
for the entire amount of the Plan voluntarily selected by Client. All such fees
shall be received at PageUp by 2:00 p.m. on the Payment Date. Client shall
pay a late charge of 2% per month, or the maximum rate permitted by applicable
law, whichever is less, on any unpaid amount for each calendar month or
fraction thereof that payments are in arrears to PageUp. All fees that have not been timely paid may
be sent by PageUp to a collection agency.
Client agrees to
be responsible for
paying all costs
of collection, including, but not limited to, reasonable attorney’s fees
and, where lawful, collection agency fees.
All accounting issues should be addressed via the contact page at
http://www.pageup.us/contact.asp.
4.3
Checks or Money Order. Client may pay fees by check or money order in
U.S. dollars only. PageUp will not accept international checks in foreign
currency. In the event a check is
returned as unpayable, PageUp will assess Client a $25.00 returned check fee.
If Client fails to pay all fees by the Payment Date, PageUp will send
Client a suspension of Services e‑mail, which will grant Client fourteen
(14) days to make payment.
4.4
Credit Card. Client may pay fees by MasterCard, Visa, American Express and
Discover (“Credit Cards”). Credit Cards
shall be charged seven (7) days prior to the Payment Date to the Credit Card
number given at the time of registration for the Plan. Payment by Credit Card includes the
authorization to charge all future recurring fees and charges to the Credit
Card on file with PageUp. If Client’s
Credit Card is denied, for any reason, PageUp will send Client a notice by e‑mail. If PageUp does not receive payment by the Payment Date, PageUp may make one final
attempt to charge Client’s Credit Card on or around the Payment Date. If PageUp does not secure payment by the
Payment Date, PageUp will send Client a Suspension of Services e‑mail,
which will grant Client fourteen (14) days to make payment. In the event Client initiates a charge back,
PageUp may immediately suspend all Services to Client until PageUp receives
full in addition to a $25.00 charge back fee and $25.00 reactivation fee.
4.5
Billing Disputes. Client must notify PageUp in
writing of any disputed charges within 30 days of the date of the billing for
such charges. If Client does not notify
PageUp within that time period, Client has waived any right to dispute such
amounts, either directly or indirectly or as a set-off, recoupment or defense
in any action or efforts to collect amounts due to PageUp.
4.6
Suspension of Services. PageUp may deem failure of Client to fully pay any
fees when due a material breach of this Agreement justifying suspension of the
performance of Services to Client. Any suspension of Services does not relieve
Client from the obligation to pay all amounts due PageUp under this Agreement
for the remainder of the Initial Term or the then applicable Renewal Term. In the event of a suspension of Services and
upon a reactivation request by Client, Client shall pay PageUp a $25.00
reactivation fee in addition to full payment of the outstanding balance
due. PageUp will only perform
reactivation of services during PageUp’s regular business hours.
4.7
Taxes. Fees are exclusive of any and all sales, use,
value added, excise, transfer, privilege, duty and any other taxes or duties,
whether international, national, state or local, however designated or assessed
with respect to the Services provided under this Agreement; excluding, income
taxes on profits which may be levied against PageUp.
5.
Client
Obligations
5.1
Client Content. Client shall provide all materials comprising the Web Site,
including, but not limited to, any and all images, photographs, illustrations,
graphics, audio clips, video clips or text (the “Client Content”), which shall
be in a correct format (as specified by PageUp), including, but not limited to,
HTML.2 format (“Server Ready”). Client
is solely responsible for the content of any postings, data or transmissions
using the Services, or any other use of the Services by Client or by any person
or entity Client permits to access the Services. PageUp reserves the right, in its sole discretion, to exclude or
remove from the Web Site any Client Content for any of the following reasons:
(i) Client Content is not Server Ready, (ii) scripts or programs consume an
unreasonable amount of Central Processing Unit (“CPU”) usage, Random Access
Memory (“RAM”), or other system resources, (iii) PageUp has received a
significant number of complaints regarding Client’s failure to be reasonably
accessible to its customers or timely fill orders, (iv) Client has become the
subject of a government complaint or investigation, (v) Client runs or executes
JAVA Servlets on the Virtual Server, or (vi) any other reason which may violate
or infringe any law or third party rights or which otherwise may potentially
expose PageUp or its Service Providers to civil or criminal liability or public
ridicule, provided that such right shall not place an obligation on PageUp to monitor
or exert editorial control over the Web Site.
PLEASE SEE SECTION 7.2 OF THIS AGREEMENT FOR SPECIFIC TERMINATION
FEES AND PROCEDURES FOR CLIENT’S VIOLATION OF THIS SECTION.
5.2
Representations and Warranties. Client
represents and warrants that: (i)
Client has the power and authority to perform its obligations hereunder and the
Agreement constitutes a valid and binding obligation enforceable against Client
in accordance with its terms, (ii) Client has the requisite level of knowledge
in the use of Internet languages, protocols and software to utilize the
Services provided by PageUp, (iii) Client has secured all required
authorization(s) necessary for hypertext links to third party web sites, (iv)
Client holds all necessary licenses from the required jurisdictions to engage
in the advertising and sale of any goods and services which may be offered on
the Web Site, (v) Client Content does not and will not contain any content,
materials, advertising or services that are inaccurate or that infringe on or violate
any applicable law, regulation or right of a third party, including, without
limitation, export laws, or any proprietary, contract, moral, or privacy right
or any other third party right, and (vi) Client owns the Client Content or
otherwise has the right to place the Client Content on the Web Site. PLEASE SEE SECTION 7.2 OF THIS
AGREEMENT FOR SPECIFIC TERMINATION FEES AND PROCEDURES FOR CLIENT’S VIOLATION
OF THIS SECTION.
5.3
Acceptable Use of Virtual Server. Client agrees to comply with all laws, rules,
regulations and PageUp’s Acceptable Use Policy (“AUP”) found at
5.4
Mailing Lists. PageUp permits Client to send
mailings to subscribers of Client’s own mailing list. These mailings must have explicit instructions to the recipient
on how to remove his/her name from the list, and Client must immediately honor
all requests to do so. . Client agrees
not to send mailings to lists provided by an outside agency or individual. Client further agrees not to provide mailing
list services to others. Due to the
nature of the Virtual Server, PageUp requests that Client send all mailing
lists during the hours of 1:00 a.m. and 5:00 a.m., Central Time. PageUp reserves the right to terminate
Client’s mailing program, whether or not provided by PageUp, immediately and
without notification to Client if the
list causes a problem, in PageUp’s sole discretion, with the e‑mail
services of other clients. PageUp also
reserves the right to forbid Client from utilizing any mail-sending program
that jeopardizes the mail services of other clients. Due to the consumption of system resources and overloading of the
e-mail server, PageUp forbids the use of Gossamer Links program by any of its
clients. PLEASE SEE SECTION 7.2 OF
THIS AGREEMENT FOR SPECIFIC TERMINATION FEES AND PROCEDURES FOR CLIENT’S
VIOLATION OF THIS SECTION.
6.
License
and Proprietary Rights
6.1
Software License. During the Initial Term and
any applicable Renewal Term, PageUp grants Client a nontransferable,
nonexclusive limited license to use the Software, in object code form only,
solely for purposes of using the Services on the Virtual Server. To the extent
such Software belongs to a third party, PageUp only grants such rights as it is
able to under an agreement with the applicable third party. CLIENT
MAY NOT USE WEB PAGES OR PARTS OF WEB PAGES GENERATED BY MEANS OF THE SOFTWARE
ON ANY SERVER OTHER THAN THE VIRTUAL SERVER.
6.2
Software License Restrictions. Client
agrees that it will not, directly or indirectly (and it will not allow others
to):
6.2.1
Copy
the Software, except as is necessary to install on Hardware and for internal,
archival purposes. In the event Client
makes any copies of the Software, Client shall reproduce all proprietary
notices on such copies;
6.2.2
Reverse
engineer, decompile, dissemble, modify or otherwise attempt to derive source
code from the Software;
6.2.3
Sell,
lease, license, transfer, give possession of, or sublicense the Software or the
documentation to others;
6.2.4
Write
or develop any derivative or other software programs, based, in whole or in
part, upon the Software.
6.3
Proprietary Rights of PageUp. Client
shall not have any right, title, or interest in the following items:
6.3.1.
Virtual
Server, Software, Hardware, documentation, or any copyrights, patents,
trademarks, trade secrets and any other proprietary rights embodied or used in
connection therewith, except for the limited license provided in
Section 6.1.
6.3.2.
Software
developed for or leased to Client by PageUp under separate agreement
unless the development or leasing
agreement specifically transfers, title, or interest in the software to Client.
6.4
Proprietary Rights of Client. As between
Client and PageUp, Client Content (except as defined and excluded in Section
6.3.2) shall remain the sole and exclusive property of Client, including,
without limitation, all copyrights, trademarks, patents, trade secrets, and any
other proprietary rights. Client hereby grants to PageUp a non-exclusive,
worldwide, royalty-free license for the Initial Term and any Renewal Term to
edit, modify, adapt, translate, exhibit, publish, transmit, participate in the
transfer of, reproduce, create derivative works from, distribute, perform,
display, and otherwise use Client Content as necessary to render the Services
to Client under this Agreement.
7.
TERMINATION
of agreement
7.1
Termination upon Breach or Insolvency. Subject to Section 7.3 below, this Agreement may be terminated by
either party upon written notice, (i) if the other party breaches any
obligation hereunder and the breaching party fails to cure the breach within thirty (30) days after notice, or (ii) if the other party is the subject of a voluntary
or involuntary bankruptcy, insolvency, reorganization or liquidation
proceeding, makes an assignment for the benefit of creditors or admits in
writing its inability to pay debts when due.
Notwithstanding the foregoing, PageUp
may terminate this Agreement at any time upon written notice to Client
if Client fails to make any payment within five (5) days after payment was due.
7.2
Termination for Client’s Breach of Sections 5.1, 5.2, 5.3, 5.4. Notwithstanding Section 7.1 above, PageUp may immediately terminate this Agreement and remove
Client’s Web Site from the Virtual Server if
PageUp determines, in PageUp’s sole discretion, that Client has breached
Sections 5.1, 5.2, 5.3, or 5.4 of the Agreement. Any termination under this Section 7.2 shall take effect
immediately and Client expressly agrees that it: (i) shall not have any opportunity to cure, (ii) shall not be
entitled to a refund of any fees paid to PageUp, and (iii) shall promptly pay a
$250.00 clean-up / disconnection fee.
7.3
Rights and Remedies upon Termination. In
the event either party terminates the Agreement pursuant to Sections 7.1 or
7.2, PageUp shall be entitled to immediately receive payment for all Services
incurred through the date of termination. In addition, it is agreed to that, if
Client is the breaching party, then PageUp will suffer damages that would be
difficult to ascertain. Therefore, Client agrees to pay PageUp all amounts due
hereunder for the remainder of the Initial Term or then applicable Renewal Term
as liquidated damages and not as a penalty.
These liquidated damages shall be in addition to all other rights and
remedies available to PageUp in law and in equity which may be granted by a
court of competent jurisdiction.
8.
Warranty
Disclaimer; Limitation on Liability & Indemnity
8.1
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3 OF THIS AGREEMENT, ALL
SERVICES ARE PROVIDED ON AN “AS IS” BASIS. PAGEUP DOES NOT MAKE, AND
HEREBY DISCLAIMS, ANY AND ALL OTHER
EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
PAGEUP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR
COMPLETELY SECURE.
8.2
Limitation on Liability.
IN NO EVENT, INCLUDING NEGLIGENCE, SHALL PAGEUP, ITS OFFICERS, AGENTS OR ANY ONE
ELSE INVOLVED IN CREATING, OR DISTRIBUTING PAGEUP'S VIRTUAL SERVER SERVICE BE
LIABLE TO CLIENT, CLIENT’S USERS OR ANY OTHER THIRD PARTY FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE
OF OR INABILITY TO USE THE PAGEUP VIRTUAL SERVER SERVICE; OR THAT RESULTS FROM
MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS
IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT
LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR
UNAUTHORIZED ACCESS TO PAGEUP'S RECORDS, PROGRAMS OR SERVICES. CLIENT HEREBY ACKNOWLEDGES
THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT ON PAGEUP'S VIRTUAL SERVER
SERVICE.
IN NO EVENT SHALL PAGEUP BE LIABLE FOR FAILURE OR DELAY IN PERFORMING ITS OBLIGATIONS
HEREUNDER IF SUCH FAILURE OR DELAY IS DUE TO CIRCUMSTANCES BEYOND ITS
REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF ANY GOVERNMENTAL
BODY, WAR, INSURRECTION, SABOTAGE, EMBARGO, FIRE, FLOOD, STRIKE OR OTHER LABOR
DISTURBANCE, INTERRUPTION OF OR DELAY IN TRANSPORTATION, UNAVAILABILITY OF OR
DELAY IN TELECOMMUNICATIONS OR THIRD PARTY SERVICES, FAILURE OF THIRD PARTY
SOFTWARE OR INABILITY TO OBTAIN RAW MATERIALS, SUPPLIES, OR POWER USED IN OR
EQUIPMENT NEEDED FOR PROVISION OF THE SERVICES.
PAGEUP’S LIABILITY, IF ANY, TO CLIENT OR TO ANY THIRD PARTY HEREUNDER SHALL IN NO EVENT
EXCEED THE TOTAL AFTER TAX PROFITS EARNED BY PAGEUP UNDER THIS AGREEMENT IN THE
LAST TWELVE MONTHS. THE PARTIES ACKNOWLEDGE THAT PAGEUP HAS SET ITS PRICES AND
ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND
THE DISCLAIMERS OF WARRANTIES SET FORTH
HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE
PARTIES. THE PARTIES AGREE THAT THE
LIMITATION AND EXCLUSIONS OF LIABILITY WILL SURVIVE AND APPLY EVEN IF FOUND TO
HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8.3
Indemnity.
Client will indemnify, defend and hold PageUp and its Service Providers, and
their officers, directors, employees, agents and affiliates (each, an
“Indemnified Party”) harmless from and against any and all costs, liabilities,
losses and expenses, including, but not limited to, reasonable attorneys’ fees
(collectively, “Losses”) resulting from or arising out of any claim, suit,
action, arbitration or proceeding (each, an “Action”) brought by a third party
against Indemnified Party relating to: (i) a breach or alleged breach by
Client of any of its representations, warranties, covenants or obligations
hereunder, (ii) infringement or misappropriation of any intellectual
property rights, including but not limited to rights of privacy, patent,
copyright, trade secret, trademark rights and/or licenses, (iii) injury caused
by any negligence or willful misconduct of Client, or (iv) use of the Services,
including use of the Services without the consent of Client.
9.
general
provisions
9.1
Privacy Policy. In an effort to address
Client’s privacy concerns, PageUp has instituted a privacy policy (“Privacy Policy”) which may be found
at http://www.pageup.us/privacy/privacy.asp and is incorporated herein by this
reference. PageUp may, at its sole discretion, amend the Privacy Policy at any time by
posting the amended Privacy Policy on its web site and notifying Client at Client’s
current e-mail address of record. Client acknowledges that it has read and
understands the Privacy Policy and that Client has an obligation to
periodically review the Privacy Policy. In the event any provisions contained
in this Agreement conflicts with any terms, conditions or clauses contained in
the Privacy Policy, the provisions of this Agreement shall govern and
supercede the Privacy Policy.
9.2
Independent Contractor. PageUp and Client are independent contractors and
this Agreement will not establish any relationship of partnership, joint
venture, employment, franchise or agency between PageUp and Client. Neither
PageUp nor Client will have the power to bind the other or incur obligations on
behalf of each other without the
other’s prior written consent.
9.3
Binding Nature of Agreement; Assignment. Except as otherwise provided herein, all the terms and provisions
of this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns, except
that Client may not assign or transfer its rights or obligations under or
interest in this Agreement without first obtaining the prior written consent of
PageUp. PageUp may, in its sole discretion,
assign its obligations under this Agreement in connection with any merger or
sale of all or substantially all of the assets of PageUp.
9.4
No Lease. This Agreement is a service
agreement and is not intended to and will not constitute a lease for any real
or personal property. Client acknowledges
and agrees that (i) it has been granted only a license to use the Services and
equipment provided by PageUp in accordance with this Agreement, (ii) Client has
not been granted any real property interest in any equipment, and (iii) Client
has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulations or ordinances.
9.5
No Third-Party Beneficiaries. The terms
and provisions of this Agreement are intended solely for the benefit of each
party hereto and their respective successors and permitted assigns, and it is
not the intention of the parties to confer third-party beneficiary rights upon
any other person.
9.6
Attorneys’ Fees. In the event of any litigation
or arbitration between the parties hereto arising from or related to a party’s
nonperformance or breach of this Agreement, the prevailing party in any action shall be entitled to reimbursement of
all costs and expenses incurred in connection with the litigation or arbitration, including without limitation,
reasonable attorney’s fees.
9.7
Alteration. No alteration, modification,
or change of this Agreement shall be valid unless made in writing and executed
by the parties hereto.
9.8
Governing Law; Venue. This
Agreement shall be governed by and shall be construed, interpreted and enforced
in accordance with the laws of the State of Ohio, without reference to
principles of conflicts of law. The
parties agree that the sole and exclusive venue for any and all disputes
arising hereunder shall be in any trial court located in Cuyahoga County, Ohio.
The parties hereby irrevocably consent to the jurisdiction of the appropriate
court in Cuyahoga County, Ohio.
9.9
Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original but all
of which shall constitute one and the same instrument. The parties agree that this Agreement, the
Service Order and Service Order Change Forms may be delivered by any party by
electronic or facsimile signature.
9.10
Severability. Each provision of this Agreement
shall be treated as a separate and independent clause, and the unenforceability
of any one clause shall in no way impair the enforceability of any of the other
clauses herein.
9.11
Entire Agreement. This Agreement, along with the
AUP, Privacy Policy and Client’s Plan, shall be the entire agreement among the
parties with respect to the transactions contemplated among them and, except as
otherwise provided, supersede all previous negotiations, commitments, and
writings.
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